The language of the law
20th Jul 2017
A slip. A trip. A fall. To most people these words are interchangeable. They mean to stumble or to lose your footing. To the legal profession, however, they are three very different events.
Lawyers are very analytical and very specific in their use of terminology. They choose their terms carefully and interpret them precisely. While such precision may seem to be a curious and even humorous idiosyncrasy to the lay-person, it can have a devastating effect on those seeking access to justice.
The recent decision of his Honour Farr J in McAllister v Brisbane City Council  QDC 94 is a tragic demonstration of this issue. Mrs McAllister sustained a severe injury to her right leg in September 2012. She was spending a relaxed and playful morning at the local park with her daughter when, by some misfortune, she broke both her tibia and fibula while chasing after her daughter who had fallen into a lake. How this injury came to occur is a matter of conjecture.
Mrs McAllister told the 000 operator that she had tripped over a pavement, fallen and broken her ankle. The paramedic who attended to Mrs McAllister recorded in his report that she had tripped on a slight lip on the edge of the path, falling forward and landing left foot down in the lake. The nursing notes from Mrs McAllister’s initial presentation at the hospital record that she heard a snap in her right leg as her right foot rolled over.
When she first consulted lawyers, Mrs McAllister said that her foot had struck the side of a post and her body lurched forward. During the course of the claim, Mrs McAllister told various experts that her foot became trapped between a post and the edge of the footpath.
To Mrs McAllister, these five descriptions were consistent with each other and detailed the same event. Any distinctions between them were ‘a matter of semantics’. To the Court, however, these descriptions were ‘remarkably inconsistent’ and his Honour was not satisfied that Mrs McAllister had proven how her injury occurred. Her claim for compensation was unsuccessful. This decision was ultimately a result of the differences in the use and interpretation of the English language by the legal profession and the rest of society (unless Mrs McAllister had fabricated the whole thing, which seems unlikely).
The law as it is today has developed over centuries. As such, the language of the law contains terms and phrases that are not a part of everyday communication. Since the last decades of the 20th century, the legal profession has made a conscious effort to use plain English when writing contracts, advices and other documents, to bridge the gap between the lay community and the legal system. No efforts have been made, however, to address the issues of interpretation.
The purpose of the law is to provide order, security and peace to the community. What good is it, though, when the habits and values of the community are not reflected in the practice of the law?
Every member of the legal profession must take responsibility and try to ameliorate this flaw. Initially, lawyers must advise clients of the importance of being extremely particular and invest the time and attention required to obtain instructions that are accurate within the meaning of the law. While this approach might treat the symptoms, it will not resolve the illness. Instead, the entire profession must recognise the need to interpret words and phrases reasonably and, in general, to communicate in line with the rest of society.
Solicitor Michelle Wright has spent much of her legal career in the field of personal injury litigation and has a particular interest in assisting clients who have sustained psychiatric injuries from incidents at work or on the road. She is a member of the Queensland Law Society, the Australian Lawyers Alliance, the Women’s Lawyers Association of Queensland and the Logan and Scenic Rim Law Association and works in a variety of volunteer programs to ensure that everyone is given equal access to essential legal advice.
This article was originally published on Michelle's blog, P.I. Case Note.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).